The Overlooked Bill of Particulars

To bring a successful defamation claim in Virginia state courts, it is necessary to allege facts sufficient to demonstrate to the judge that the statement claimed to be defamatory is capable of conveying a defamatory meaning to a reasonable audience. Before a defamation claim can be presented to a jury, the judge needs to make a preliminary determination that the statement at issue conveys factual information (rather than mere opinions) and that such factual information could be reasonably interpreted as having a defamatory meaning. What is a trial court supposed to do if the complaint contains only a short, out-of-context excerpt of the defendant’s statement?

In federal court, some judges have denied motions to dismiss such claims on the theory that the merits of the claim—while not apparent from the face of the complaint—are plausible and might be proven at trial. In state court, however, guidance from the Virginia Supreme Court suggests that libel and slander cases should be dismissed on demurrer if defamatory meaning is not readily apparent. In some situations, plaintiffs’ lawyers will craft the complaint in such a way as to make an out-of-context statement appear defamatory, when the surrounding statements omitted from the allegations would demonstrate that the statement as a whole could only be reasonably interpreted as hyperbole or opinion. When defense counsel is faced with such a situation, the smart move is to move for a bill of particulars.

Trial courts can order a bill of particulars “to amplify any pleading that does not provide notice of a claim or defense adequate to permit the adversary a fair opportunity to respond or prepare the case.” Va. Sup. Ct. Rule 3:7(a). When a plaintiff claims defamation, the preferred practice is to include the entire statement (verbatim) as well as all relevant surrounding details of the statement sufficient to demonstrate context. When such details are not included, “they are proper matters to be stated in a bill of particulars.” Fed. Land Bank of Baltimore v. Birchfield, 173 Va. 200, 217 (1939). The Virginia Supreme Court reiterated this principle as recently as 2006, when it expressly recognized that “the particulars of [an] allegedly defamatory statement may be supplied in a bill of particulars.” See Government Micro Res., Inc. v. Jackson, 271 Va. 29, 38 (2006).

Whether a particular statement is a potentially actionable as defamation is a question of law to be decided by the court. See Fuste v. Riverside Healthcare Ass’n, Inc., 265 Va. 127, 132-33 (2003) (holding that it is up to the court to determine whether a statement amounts to fact or opinion). A demurrer is an appropriate vehicle for resolving the question of whether a particular statement will support a defamation action. In fact, the Virginia Supreme Court has affirmatively encouraged trial courts to promptly screen out defamation claims that may lack merit and dispose of them on demurrer. In Webb v. Virginian-Pilot Media Companies, LLC, 287 Va. 84, 90 (2014), the court held that “[e]nsuring that defamation suits proceed only upon statements which actually may defame a plaintiff, rather than those which merely may inflame a jury to an award of damages, is an essential gatekeeping function of the court.”

For the trial court to be able to perform this gatekeeping function, it must have all details of the statement claimed to be defamatory. This is because defamatory meaning is judged from the perspective of the reasonable listener, and to determine whether a reasonable listener would have understood the alleged statement as conveying actual facts, rather than mere opinion, the words must be considered in context. See American Communications Network, Inc. v. Williams, 264 Va. 336, 341-42 (2002) (holding that defendant’s words must be considered in context rather courthousethan in isolation); Yeagle v. Collegiate Times, 255 Va. 293, 297-98 (1998)(analyzing phrase at issue “in the context of the entire article” written by the defendant).

The Supreme Court of Virginia has also been very clear that in “determining whether a statement is one of fact or opinion, a court may not isolate one portion of the statement at issue from another portion of the statement.” Hyland v. Raytheon Tech. Servs. Co., 277 Va. 40, 47 (2009). In other words, the defendant’s words must be considered “as a whole,” including consideration “of any accompanying opinion and other stated facts.” Id. at 47-48.

If a plaintiff omits surrounding statements that shed light on how a larger communication would be interpreted when considered as a whole, a bill of particulars can be ordered to supplement the record with the facts necessary to enable the defendant to craft a demurrer and enable the trial court to perform its gatekeeping function.

Libel and slander lawsuits tend to chill the exercise of free speech, a right guaranteed by the First Amendment. This is true even in situations where the lawsuit has no merit, as most people would rather say nothing than voice criticism and face potential litigation. As the United States Supreme Court recognized in New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), this country has “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Largely for these reasons, the Supreme Court of Virginia requires that trial courts perform a gatekeeping function to ensure that the only defamation lawsuits permitted to go forward are those in which the alleged statements go beyond the protections of the First Amendment. If a plaintiff’s defamation claim is based on pure opinion but that fact is concealed by the strategic omission of relevant facts, the defendant should move for a bill of particulars.

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